State of New Hampshire v. Jeffrey Woodburn

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0484, State of New Hampshire v. Jeffrey
Woodburn, the court on July 30, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Jeffrey Woodburn, appeals a decision of the
Superior Court (Bornstein, J.), issued following a hearing, denying his motion
for a new trial based on alleged ineffective assistance of counsel. We affirm.

In 2019, the State charged the defendant with four counts of simple
assault, two counts of domestic violence, two counts of criminal mischief, and
one count of criminal trespass for a series of incidents involving E.J., the
defendant’s then intimate partner. The earliest charged conduct, a simple
assault charge and a criminal mischief charge, occurred on August 10, 2017.
Several other charges were derived from conduct that occurred on December
15 (simple assault and domestic violence) and December 24, 2017 (criminal
mischief, criminal trespass, and simple assault), and other charged conduct
that occurred on June 9-10, 2018.

All charges were tried before a single jury in the Coos County Superior
Court on May 10-14, 2021. The jury convicted the defendant of the two counts
of criminal mischief (separately occurring on August 10 and December 24) as
well as the December 15 simple assault and domestic violence charges. The
jury did not convict the defendant of the alleged August 10, 2017 simple
assault, the alleged December 24, 2017 criminal trespass or simple assault, or
of any of charges related to the events of June 9-10, 2018.

The defendant appealed. This court affirmed the criminal mischief
convictions and reversed the December 15 simple assault and domestic
violence convictions, finding the trial court erred in not instructing the jury on
the issue of self-defense. See State v. Woodburn, 175 N.H. 645, 655 (2023).
This court remanded the simple assault and domestic violence convictions for a
new trial. See id. at 656.

Thereafter, on June 21, 2023, the defendant moved for a new trial on the
two criminal mischief convictions, arguing his trial counsel was ineffective for
not attempting to sever any charges and instead allowing all nine charges to be
heard at the same trial. The trial court held a hearing at which the defendant
testified that trial counsel never discussed with him the possibility of moving to
sever the cases. The State did not depose trial counsel, and trial counsel did
not testify at the hearing.

The trial court denied the defendant’s motion for a new trial from the
bench, stating, in part, that:

[E]ven if joinder of all nine charges was improper, any alleged
misjoinder is harmless error where the evidence is overwhelming
with respect to the charged conduct . . . for which the Defendant
seeks to have a new trial, the two criminal mischief charges in this
case. Again, I find that the Defendant has not established the
prejudice prong of the ineffective assistance of counsel test for two
separate, independent reasons.

First . . . the jury . . . convicted the Defendant only of the charges
in which he admitted to engaging in the charged conduct, that is
he admitted to kicking in the dryer door and forcing open the
house door, and admitted to biting the alleged victim’s hands in
the car on December 15th. . . .

[T]he jury’s guilty verdicts on the two criminal mischief charges
were based on and driven by the Defendant’s own testimony,
admitting to that conduct, and explaining it and taking
responsibility for it.

I also [find] that the Defendant has not established prejudice for a
second reason, which is that the verdicts ― the jury’s verdicts
themselves on these nine charges demonstrates the absence of any
such prejudice. That is the jury found the Defendant not guilty [of
other conduct that occurred on the same days as the criminal
mischief conduct].

This appeal followed.

The defendant’s claim of ineffective assistance of counsel rests upon both
the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S.
CONST. amends. VI, XIV. We first address the defendant’s claim under the
State Constitution and rely on federal law only to aid in our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983). The New Hampshire Constitution
guarantees a criminal defendant reasonably competent assistance of counsel.
See State v. Cable, 168 N.H. 673, 680 (2016). To prevail upon a claim of
ineffective assistance of counsel, the defendant must demonstrate first that
counsel’s representation was constitutionally deficient, and second, that
counsel’s deficient performance actually prejudiced the outcome of the trial.
Id.

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 To meet the first prong of this test, the defendant must show
that counsel’s representation fell below an objective standard of
reasonableness. We judge the reasonableness of counsel’s conduct
based upon the facts and circumstances of that particular case,
viewed from the time of that conduct. As we have explained,
judicial scrutiny of counsel’s performance must be highly
deferential; a fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.
Because of the inherent difficulties in making this evaluation, there
is a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Because the
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms, to establish
that his trial attorney’s performance fell below this objective
standard of reasonableness, the defendant must show that no
competent lawyer would have engaged in the conduct of which he
accuses his trial counsel.

To meet the second prong, the defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the trial would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the trial’s outcome. The prejudice
analysis considers the totality of the evidence presented at trial.
Both the performance and prejudice prongs of the ineffectiveness
inquiry are mixed questions of law and fact. Therefore, we will not
disturb the trial court’s factual findings unless they are not
supported by the evidence or are erroneous as a matter of law, and
we review the ultimate determination of whether each prong is met
de novo. A failure to establish either prong requires a finding that
counsel’s performance was not constitutionally defective.

State v. Newton, 175 N.H. 279, 285 (2022) (citations omitted).

Here, we need not address the first prong, because, as the trial court
found, the record supports a conclusion that joinder of the nine charges did
not prejudice the defendant, who was acquitted of more than half of the
charges. Although the defendant argues that “failing to sever allowed the jury
to hear testimony about the couple’s relationship that painted [the defendant]
in a negative light,” we agree with the trial court that evidence of actual
prejudice is lacking where the defendant, through his trial testimony, admitted
to the conduct that formed the criminal mischief charges, i.e. kicking in the
complainant’s drier door and kicking in the door to her home. The strength of
the evidence related to the criminal mischief charges, in combination with the

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jury’s multiple not guilty findings as to other related charges, indicate that it
was the direct evidence of the underlying conduct, rather than any extraneous
relationship information that may have been rendered admissible due to the
joinder of multiple charges, that prompted the jury’s guilty findings on the
criminal mischief charges.1

The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. State v. Kepple, 155
N.H. 267, 269 (2007); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution. The trial court’s decision to deny the defendant’s
motion for a new trial is affirmed.

Affirmed.

Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

1 For example, the defendant was charged with criminal mischief and simple assault for the

incidents that occurred on August 10, 2017, yet the jury acquitted him of the August, 10, 2017
simple assault. Similarly, the defendant was charged with criminal mischief, criminal
trespass, and simple assault for the events that occurred on December 24, 2017; however, the
jury acquitted the defendant of the related criminal trespass and simple assault charges.

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